President Biden’s family, individuals within his Administration, and his political supporters will defend him aggressively when former President Trump and others in the GOP deride him for his many gaffes and policy blunders. Mainstream media pundits will continue to cover for him when presented with inescapable evidence of his advanced age.
There is, however, one trait exhibited repeatedly by the current President that is beyond dispute or defense even by his most ardent supporters – Biden’s utter disdain for the rule of law. This disturbing characteristic was on full display recently with the signing of a regulatory “rule” placing further limits on the Second Amendment without bothering to secure the legislative approval to do so as required by the Constitution.
Constitutional Law 101 reminds us that of the three branches of our government, only the Legislative is empowered to pass, amend, or change laws. In fact, the very first operative sentence of the Constitution makes this abundantly clear, vesting All legislative Powers in the Congress; not in the presidency and not in the Courts. Once the Congress has spoken by passing legislation, and once signed by the president, it becomes the law of the land and can be changed only by subsequent act of Congress.
It is black-letter law that a president cannot, consistent with the Constitution and the principle that America operates as “a government of laws, and not of men,” simply change terms defined and codified in statutes to suit his policy preferences.
This is, however, exactly what the Biden Administration has done with long-standing firearms laws which provide that if individuals or businesses regularly and as a matter of course sell firearms, then such transfers must first be cleared through the National Instant Criminal Background Check System (“NICS”). Importantly, neither the “Gun Control Act of 1968” (which set up the system of Federal Firearms Licensees) nor the “Brady Handgun Violence Prevention Act of 1993” (which established the NICS system) required that every transfer of a firearm be first cleared through the NICS system.
In making such a distinction between what might be considered “occasional” gun sales and those by a business or individual engaged in the regular commerce of trading in firearms, the Congress properly limited the reach of mandated firearms background checks to the scope of federal power under the Constitution; namely, “commerce.”
Gun control advocates cleverly over the decades have hijacked the term “loophole” to characterize sales at gun shows in such a way as to imply that such sales were intended by Congress to have been covered by the background check mandate. In fact, however, federal law is clear on this point – there is no gun show “loophole” (defined by Merriam-Webster as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded”).
In recent years, there have been myriad legislative proposals to do what the Congress explicitly has declined to do – expand the definition of “engaged in the business” of selling firearms to close an imaginary “gun show loophole.” All such efforts have failed to gain a majority vote in the Congress – something that really chafes anti-Second Amendment advocates like Joe Biden, who believe the default for every transfer of a firearm should be a mandatory NICS background check.
Not only has there never been a “gun show loophole,” but even if such a thing existed, according to the federal government’s own data only a very small number of illegally trafficked firearms originate at gun shows (a mere three percent according to the just-published federal “National Firearms Commerce and Trafficking Assessment”).
Despite these facts, the Biden Administration on April 8th finalized its 466-page “rule” that changes the statutory definition of “engaged in the business” of selling firearms so that, as accurately noted in an analysis of the new rule by the NRA, tens of thousands of lawful private gun sales will now be unlawful. The April 11th White House “Factsheet” proudly heralding the new gun control rule includes the requisite fearmongering about untold victims of guns acquired at gun shows without NICS background checks but who now will be saved by closing the “gun show loophole.”
The only true victim in this latest gun control maneuver, however, is the rule of law.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.